Citation Nr: 1222970
Decision Date: 07/02/12 Archive Date: 07/13/12
DOCKET NO. 10-37 714 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office
in Winston-Salem, North Carolina
THE ISSUE
1. Entitlement to an initial disability rating higher than 70 percent for a psychiatric disorder for the period from February 7, 1992, to May 3, 1992, for accrued benefits purposes.
2. Entitlement to an initial disability rating higher than 30 percent for a psychiatric disorder for the period from November 1, 1992, to September 22, 2000, for accrued benefits purposes.
3. Entitlement to an initial rating higher than 70 percent for a psychiatric disorder from September 23, 2000, to July 12, 2004, for accrued benefits purposes.
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4. Entitlement to an effective date earlier than February 13, 2007, for a grant of special monthly compensation based on the need for aid and attendance, for accrued benefits purposes.
REPRESENTATION
Appellant represented by: Peter Sebekos, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Senior Counsel
INTRODUCTION
The Veteran had active service from September 1952 to June 1954. He died in March 2008. The appellant is his surviving spouse.
This matter came before the Board of Veteran's Appeals on appeal from decisions by the Winston-Salem, North Carolina, regional office (RO). During his lifetime, the Veteran perfected appeals with respect to decisions regarding the proper initial rating for a psychiatric disability, and entitlement to special monthly compensation based on the need for aid and attendance. The Board issued a decision regarding those issues in April 2008, however, the decision is void because it was unknowingly issued subsequent to the Veteran's death.
In a decision of April 2009, the RO denied the appellant's claim for accrued benefits based on the claims pending at the time of the Veteran's death. Subsequently, in a decision of January 2010, the RO granted accrued benefits based on entitlement to special monthly compensation based on the need for aid and attendance effective from February 13, 2007. The appellant has appealed the denial of accrued benefits based on the rating for the psychiatric disorder, and has appealed the effective date of the special monthly compensation.
A hearing was held before the undersigned Veterans Law Judge in October 2011.
FINDINGS OF FACT
1. The Veteran was totally disabled due to the combined effects of his service connected psychiatric disorder and his nonservice connected head injury since February 7, 1992.
2. The Board is unable to differentiate between the symptomatology attributable to the nonservice-connected disability and the service-connected disability.
3. The Veteran's service-connected disabilities resulted in physical and mental incapacity, which required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, from February 7, 1992.
CONCLUSIONS OF LAW
1. The criteria for a 100 percent disability rating effective from February 7, 1992, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (2011).
2. The criteria for an earlier effective date of February 7, 1992, for a grant of special monthly compensation based on the need for aid and attendance, for accrued benefits purposes, are met. 38 U.S.C.A. §§ 1114, 5110 (West 2002); 38 C.F.R. §§ 3.350, 3.400, 3.401 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2011).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).
As discussed below the appellant's accrued benefits claim is decided based on evidence already in the claims file on the date of the Veteran's death. This, generally speaking, is the only type of evidence that can be considered with respect to such a claim. Further development, therefore, would serve no useful purpose. Whatever facts are necessary to adjudicate the claim are contained in the claims folder. Thus, notice or assistance to the appellant would be fruitless.
The Board adds that general due process concerns have been satisfied in connection with this appeal. 38 C.F.R. § 3.103 (2011). The appellant engaged the services of a representative and was provided ample opportunity to submit argument in support of her claim. Furthermore, the appellant provided testimony at a Travel Board hearing in October 2011. Finally, the Board notes that in light of the full allowance of the benefits sought on appeal, any defect with respect to notice or development of evidence has no prejudicial effect.
I. Entitlement To A Higher Initial Disability Rating For A
Psychiatric Disorder For Accrued Benefits Purposes.
The law and regulations governing claims for accrued benefits, as applicable to this case, state that, upon the death of a Veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which he or she was entitled at the time of death, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2011). An application for accrued benefits must be filed within one year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits. See 38 C.F.R. § 3.1000(c); 3.152(b) (2011).
Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011).
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.
38 C.F.R. § 4.21 (2011).
Under the former schedule, generalized anxiety disorder warrants a 100 rating if the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such a fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or if the disorder results in a demonstrable inability to maintain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
A 70 percent rating is assigned if the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence as to result in severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
A 50 percent evaluation is assigned if the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
A 30 percent rating is warranted if the disorder results in definite impairment in the ability to establish or maintain effective and wholesome relationships with people and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
A 10 percent rating is warranted when the manifestations of the disability are less than those required for a 30 percent rating but there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996).
VA has interpreted "definite" to mean "distinct, unambiguous, and moderately large in degree." VAOPGCPREC 9-93 (Nov. 9, 1993).
The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. The emotionally sick veteran with a good work record is not to be under evaluated, nor is a veteran to be over-evaluated on the basis of a poor work record not supported by the psychiatric disability picture. It is for this reason that great emphasis is placed upon the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner's analysis of the symptomatology are the essentials. 38 C.F.R. § 4.130 (1996).
Under the current schedule, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2011).
A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400.
A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400.
A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400.
A 10 percent rating is warranted for generalized anxiety disorder if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or where the symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2011).
The Board has considered the full history of the Veteran's psychiatric disorders. The Veteran originally sustained a nonservice-connected head injury in the 1970's. He then began collecting Social Security disability benefits based on that injury. Subsequently, during the 1980's, he was treated for kidney cancer.
During the early 1990's, he was advised by the VA that he had a recurrence of cancer which had spread to his bones. He was placed on narcotic pain medications. Eventually, VA physicians concluded that he did not in fact have bone cancer. His pain medications were halted. Shortly thereafter, he attempted suicide by shooting himself in the chest.
The Veteran sought and was granted benefits under 38 USCA § 1151 for aggravation of mental disorders due to the misdiagnosis. The Veteran was assigned a 70 percent disability rating from February 7, 1992, through May 3, 1992, and from September 23, 2000, through July 12, 2004. He was assigned a 30 percent rating from November 1, 1992, through September 22, 2000. He sought a 100 percent rating for those periods. As noted above, the Veteran died in 2008, and the current claim for accrued benefits was brought by his surviving spouse.
During a hearing held in October 2011 before the undersigned, the appellant testified that following his suicide attempt, the Veteran could not function alone and had frequent panic attacks. She noted that he had done some part time work subsequent to his head injury in 1975, but did not work at all following the suicide attempt. She stated that he was often anxious and crying during the period from 1992. She also reported that he could not drive due to taking medications such as ativan.
Although the veteran had multiple psychiatric/mental diagnoses, with the exception of eating disorders, all mental disorders, including PTSD, major depressive disorder and anxiety disorders, are rated under the same criteria in the rating schedule, which are set out above. As the diagnosed disorders in this case are manifested by similar symptomatology, separate disability ratings cannot be assigned without violating the general prohibition against pyramiding. See 38 C.F.R. § 4.14 (2011).
During the pendency of this claim, the criteria for evaluating psychiatric disorders were revised, effective November 7, 1996.
In VAOPGCPREC 7- 2003, the General Counsel held that when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision from their effective date. VAOPGCPREC 7-2003.
In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date.
The Board also notes that the grant of VA compensation in October 2003 was based on aggravation of a pre-existing psychiatric/mental disability due to VA treatment in March 1990 under 38 U.S.C. § 1151. While the Veteran's psychiatric/mental disability did not predate service, it did predate the VA treatment that provided the basis for VA disability compensation.
The Court has held that, when aggravation of a non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448. See also 38 C.F.R. §§ 3.310, 3.322 (2011).
Although the cited regulations are nominally applicable to preservice disabilities, the Court in Allen found the provisions of 38 C.F.R. § 3.322 also applicable to aggravation of non-service-connected conditions by service-connected conditions. That section provides that, it is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule. As applied by the Court in Allen, the Board interprets this language as requiring deduction from the present evaluation, the degree of disability existing prior to the aggravation.
The Veteran was rated totally disabled due to psychiatric illness, for purposes of non-service-connected pension, prior to the adjudication which established entitlement to service connection for a psychiatric disorder, effective from February 1992. The appellant's attorney essentially contends that this rating should be carried over as the service-connected rating, and that any reduction in the percentage assigned for pension purposes should be treated as a rating reduction.
The attorney has also asserted that many if not all of the psychiatric assessments cited by the Board in support of a rating less than 100 percent were made when the Veteran's wife accompanied him to his mental health clinic appointments. Due to the Veteran's profound dependence on his wife for stability and psychological support, the Board should view these assessments with a degree of skepticism. The attorney posited that, to fairly weigh the evidence, the Board should seriously consider whether the Veteran's psychiatric disorder would have manifested itself in a far more debilitating manner, without the reassuring presence and support of his wife.
During the period from February 7, 1992, through May 3, 1992, just prior to the assignment of a total rating, a February 7, 1992, hospital discharge summary indicates that the Veteran had a severe anxiety disorder. On examination, he was found to be extremely anxious. The Veteran was hospitalized in March 1992 due to lower abdominal pain, and stated that he planned to overdose on pills to make the pain go away.
The Veteran has been noted to demonstrate anxiety during this period, as well as panic attacks. In particular, in October 1993, it was noted that the Veteran's symptoms were suggestive of anxiety with a marked concentration deficit.
The Board acknowledges that an October 1993 VA outpatient treatment report shows that the veteran had a very dependent demeanor rendering him excessively dependent on his wife and therapist, and that he became depressed when his wife attended to other activities, and became agitated and anxious with marked concentration deficit.
A private record dated in January 1994 from a private physician, Jack Dawson, M.D., noted the history of a suicide attempt the previous year, and stated that the Veteran was apparently still under severe stress as a result of the very serious diagnostic mistake. It was noted that when seen in December 1992 he was quite lethargic and depressed. He was poorly responsive and in very poor spirits.
The June 1994 medical statement for consideration for aid and attendance shows diagnoses of COPD, bronchitis, coronary artery disease, costochondritis, hiatal hernia with gastroesophageal reflux, diverticulosis, degenerative arthritis of the lumbar spine with spinal stenosis, and psychiatric diagnosis of major depression with suicide attempts and panic attacks. The examiner noted that the Veteran has severe panic attacks when left alone and is unable to care for himself in any way due to his mental instability and physical ailments.
An October 1994 RO rating decision includes the following discussion:
Prior rating action had discontinued aid and attendance benefits effective May 1, 1993. Additional evidence has been received and reviewed. The additional evidence shows the Veteran continues to have significant disabilities including nervous condition, lung condition, orthopedic disabilities and glaucoma. He has severe anxiety, shortness of breath and panic attacks. He has significant restriction of visual fields. The Veteran requires assistance with dressing, bathing and shaving. He is not able to protect himself from the hazards and dangers of his daily environment. Due to the severity of his nervous condition he cannot be left alone.
In addition, a March 1995 VA examination showed that the Veteran had few regular activities except church. In a December 1995 evaluation, the examiner made note of "death - lying in casket at funeral home - shot at by enemy."
On September 23, 2000, an MMPI-2 was administered, showing that the Veteran had multiple mental/emotion-based problems with few coping resources. The examiner noted that the Veteran tended to present multiple dramatic somatic concerns that were suggestive of a loss of reality contact at times. His responses suggested that he was in great turmoil, feeling both depressed and quite panicked. The September 2000 examiner noted that the Veteran had no plans for the future beyond the moment, and was constantly anticipating his own death. The Veteran also had heightened irritability as compared to pre-trauma levels.
The September 2000 examiner noted that the Veteran had withdrawn from activities and tried to avoid emotions and thoughts related to his suicide attempt. He was found to have a morbid fear of being alone. He felt no closeness of any sort with anyone except his wife, due to feelings of being different from others due to his past suicide attempt.
A GAF score of 50 was assigned in January 2001 which reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).
The record contains letters from H.G.P, a licensed psychologist, and L.A.Y., D.O., both dated in October 2001, which basically attest to the Veteran's total occupational impairment. However, these opinions are based on all of the veteran's disabilities, physical and mental, service-connected and non-service-connected. The letters, however, both appear to base the conclusion primarily on consideration of mental impairment.
A February 2004 report from L.S., M.D. shows that the veteran was experiencing worsening depression, confusion and agitation, and that he was "significantly depressed."
The Board notes that the Veteran has been unemployed since 1975, and it may fairly be conceded that, due to the combined effect of service-connected and non-service-connected disabilities, he has been unemployable during that period. A medical opinion was obtained on remand to assist the Board in determining the degree of impairment that is due to non-service-connected disability as opposed to the disability for which the Veteran's received VA compensation.
The January 2008 opinion contains a summary of the relevant facts in this case. The examiner stated that the Veteran's symptoms of depression and anxiety intensified after the March 1990 aggravation (due to the misdiagnosis), and that he had diminished capacity to cope over time. He reportedly showed increased dependency on others. However, the January 2008 opinion was ultimately inconclusive, and the physician stated that the requested opinion could not be stated with any certainty without resorting to speculation.
Although VA may compensate a Veteran only for service-connected disability, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).
Here, the evidence does not adequately distinguish between service-connected and non-service-connected mental diagnoses with respect to the resulting symptomatology. Accordingly, consistent with the holding in Mittleider; the Board must consider those symptoms as part of the service-connected disorder.
Accordingly, based on consideration of both versions of the rating schedule, the Board concludes that a 100 percent rating is warranted from February 7, 1992, to because the service-connected symptomatology more nearly approximate the criteria for a 100 percent rating. The Veteran has been totally disabled due to the combined effects of his service connected psychiatric disorder and his non service connected head injury since February 7, 1992. The Board is unable to differentiate between the symptomatology attributable to the non-service-connected disability and the service-connected disability. Accordingly, the Board concludes that the criteria for a 100 percent disability rating effective from February 7, 1992, are met.
II. Entitlement To An Effective Date Earlier Than February 13, 2007, For A Grant Of Special Monthly Compensation Based On The Need For Aid
And Attendance, For Accrued Benefits Purposes.
Special monthly compensation is payable at a specified rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2002), 38 C.F.R. § 3.350(b) (2011).
The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination.
A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.
The effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit recently reaffirmed that "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010).
The effective date for aid and attendance benefits, except as provided in 38 C.F.R. § 3.400(o)(2), is the date of receipt of claim or date entitlement arose, whichever is later. Significantly, however, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401(a)(1).
The Board previously found that the evidence in this case, discussed in detail above, established that the Veteran suffered physical and mental incapacity which required care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. For this reason, the Board granted entitlement to special monthly compensation in a prior decision. The RO assigned an effective date of February 13, 2007. The appellant now seeks an earlier effective date.
During the hearing held in October 2011, the appellant testified that subsequent to his suicide attempt, the Veteran was completely unable to function and could not be left alone because he had severe panic attacks. She stated that from the 1990's until his death she basically spent all her time taking care of him. She also noted that she had to drive him whenever he needed to go anywhere. The appellant's attorney noted that the RO had made a decision in October 1994 for pension purposes that the Veteran required aid and attendance due to major depression, vertigo, headaches and panic attacks. The attorney argued, in essence, that this aid and attendance was in fact require by the same disabilities for which the Veteran eventually received VA compensation.
Initially, the Board notes that although the claim for regarding Aid and Attendance benefits was not received until February 13, 2007, the appellant's attorney has pointed out that a claim for entitlement to aid and attendance benefits may be raised by the evidence which is of record. The representative argues that a claim for aid and attendance benefits was effectively raised upon the filing of the claim for compensation benefits in 1992.
The Board finds that there are multiple items of evidence that provide support for the claim for aid and attendance benefits. During the period from February 7, 1992, through May 3, 1992, just prior to the assignment of a total rating, a February 7, 1992, hospital discharge summary indicates that the Veteran had a severe anxiety disorder. On examination, he was found to be extremely anxious. The Veteran was hospitalized in March 1992 due to lower abdominal pain, and stated that he planned to overdose on pills to make the pain go away.
The Veteran has been noted to demonstrate anxiety during this period, as well as panic attacks. In particular, in October 1993, it was noted that the Veteran's symptoms were suggestive of anxiety with a marked concentration deficit.
The Board acknowledges that an October 1993 VA outpatient treatment report shows that the veteran had a very dependent demeanor rendering him excessively dependent on his wife and therapist, and that he became depressed when his wife attended to other activities, and became agitated and anxious with marked concentration deficit.
The report of an aid and attendance examination conducted by the VA in March 1994 notes that the Veteran was not able to protect himself from the hazards and dangers of daily living. The examiner stated that the Veteran had shortness of breath with minimal activity, and, more importantly, suffered from a severe panic disorder and constantly needed his wife to be around. He reportedly got really frightful when by himself and developed hallucinations.
In a June 27, 1994 statement, Dr. Jack Dawson diagnosed major depression with suicidal attempt, panic attacks, and noted that the Veteran had difficulty dressing himself, bathing himself, and was unable to prepare his own meals. The doctor noted that the Veteran had panic attacks when left alone and Dr. Dawson concluded that the Veteran was unable to care for himself in any way due to mental instability and physical ailments.
In a written statement dated in August 1994, the appellant stated that the Veteran was 100 percent disabled from major depression, he needed guidance and supervision, and could not be left alone. She further stated that he had panic attacks, and thought that he heard things that were not there.
The September 2000 examiner noted that the Veteran had withdrawn from activities and tried to avoid emotions and thoughts related to his suicide attempt. He was found to have a morbid fear of being alone.
In a July 2004 letter, the Veteran's private physician, Thomas Vybrial, stated that the Veteran was physically unable to manage his VA affairs and also suffers period of mental disorientations which preclude him from being able to manage his own affairs.
In a November 2005 letter, the Veteran's private physician, M.L.S., M.D. stated that the Veteran has multiple medical problems. He was currently living in a nursing home and was unable to attend outpatient visits due to his medical conditions.
In a March 2007 medical statement for consideration for aid and attendance, the veteran was found not to be able to leave home, to bathe or toilet, or to dress without the assistance of another. This was due to multiple diagnoses.
The Board finds that a claim for special monthly compensation was effectively raised simultaneously with the claim for compensation in 1992 in light of evidence from that time indicating inability to be alone due to his panic attacks. The Board further finds that the Veteran's service connected disabilities resulted in physical and mental incapacity, which required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, from February 7, 1992. A VA examiner specifically found a need for aid and attendance in March 1994. A private physician made the same finding later that year. As noted above, the RO concluded in 1994 that the Veteran was in need of aid and attendance based on a combination of impairment from service-connected and nonservice-connected disabilities.
The evidence shows that essentially the same level of need for aid and attendance had been present since the effective date of compensation in on February 7, 1992, and continued to the date of death. Here, the evidence does not adequately provide a basis for the Board to distinguish between service-connected and non-service-connected mental diagnoses with respect to the resulting symptomatology.
Therefore, consistent with the holding in Mittleider; the Board must consider those symptoms requiring aid and attendance as part of the VA compensated disorder. Accordingly, the Board concludes that the criteria for an earlier effective date of February 7, 199 2, for a grant of special monthly compensation based on the need for aid and attendance, for accrued benefits purposes, are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400, 3.401 (2011).
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ORDER
1. A 100 percent rating for a psychiatric disorder is warranted from February 7, 1992, subject to the law and regulations governing the payment of monetary benefits.
2. An earlier effective date of February 7, 1992, for special monthly compensation based on the need for aid and attendance, for accrued benefits purposes, is granted, subject to the law and regulations governing the payment of monetary benefits.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs